Skip to content


Vithaldas Bhagvandas Darbar Vs. Tukaram Vithoba Kshatri - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 323 of 1938
Judge
Reported inAIR1941Bom153; (1941)43BOMLR225
AppellantVithaldas Bhagvandas Darbar
RespondentTukaram Vithoba Kshatri
DispositionAppeal dismissed
Excerpt:
.....he should be recouped what he has so paid by the person who ultimately benefits by the payment, 8. section 69 of the indian contract act was not mentioned in the judgment, but the principle relied upon seems to be the same, and that principle does not apply if the legal effect of the transaction between the plaintiff and ramappa was that ramappa paid the money and not the plaintiff. incidentally i may say that the plaintiff's good faith is by no means clear, since all the payments) which he made to government were made after the attachment of the survey no. but in our opinion the lower courts were clearly right in holding that the plaintiff's suit was misconceived and that his only legal remedy was to sue defendant no......inapplicable. if the repayment of the tagai loan to government is to be regarded as the act of the vendor ramappa, and not the act of the plaintiff, the purchaser, the plaintiff, obviously does not come within the terms of section 69, moreover, even if it were possible to say that there was a payment by the plaintiff within the meaning of section 69, it was a payment which he was bound to make under the terms of his agreement with ramappa, and it would not therefore be open to him to say that it, was a payment which some other person was bound to make.7. mr. coyajee relied on dakshina mohun roy chowdhry v. saroda mohun roy chowdhry , where lord macnaghten said in the course of his judgment (p. 163):--. . . it seems to their lordships to be common justice that when a proprietor in good.....
Judgment:

Broomfield, J.

1. This is an appeal by the plaintiff from a decree of the District Judge of Bijapur confirming a decree of the Joint Subordinate Judge of Bijapur, who dismissed a suit brought by the plaintiff for reimbursement or contribution.

2. The plaintiff's claim was put forward in the following circumstances. One Ramappa who was the father of defendant No. 1 was the owner of four fields, survey Nos. 5/2, 381, 382 and 124. In October-November, 1927, Ramappa borrowed Rs. 1,000 from Government under the Land Improvement Loans Act for the improvement of survey No. 5/2. By virtue of Section 7 of the Act Government therefore has the right to recover the money with interest from the borrower personally, or out of the land for the benefit of which the loan was granted, or out of properties given as collateral security that is in the present case survey Nos. 381, 382 and 124. It is provided in the same section that it is in the discretion of the Collector to determine the order in which he will resort to the various modes of recovering the moneys which are recoverable as if they were arrears of land-revenue. On November 26, 1929, Ramappa mortgaged survey Nos, 381 and 382 to defendant No. 3. On January 25, 1932, he sold survey Nos. 5/2 and 124 to the plaintiff. The consideration for the sale was Rs, 5,000, and the sale deed (exhibit 28) provided that out of this sum Rs. 1,000 was to be kept with the purchaser (plaintiff) for discharging the tagai debt. Prior to this in 1930 defendant No. 2 had obtained a money decree against Ramappa and he attached survey No. 5/2 four days before the plaintiff's purchase. Subsequently on February 4, 1933, defendant No. 2 purchased that survey number in execution proceedings. The tagai debt due to Government was paid off by the plaintiff in three instalments--one of Rs. 150 paid on May 27, 1932, one of Rs. 150 paid on March 18, 1933, and the final instalment of Rs. 600 paid on November 13, 1934. On March 23, 1933, the plaintiff brought a suit against defendant No. 2 to recover possession of survey No. 5/2, but the suit failed because it was held that defendant No. 2 had a prior claim in view of the fact that he had attached the land before the sale of it to the plaintiff. The suit in which the present appeal arises was filed by the plaintiff in June, 1935. He claimed to have a charge on survey Nos. 5/2, 381, and 382 and to be entitled to recover the amount paid by him to Government from defendants Nos. 1, 2 and 3. As I have mentioned, the plaintiff failed in both the lower Courts. He there relied partly on Section 92 of the Transfer of Property Act and partly on Section 69 of the Indian Contract Act.

3. Section 92 deals with the rule about what is called subrogation. In Section 91 certain persons other than the mortgagor are stated to be entitled to redeem a mortgage; and Section 92 provides that if any of these persons does in fact redeem a mortgage, he has the same rights as regards redemption, foreclosure or sale as the mortgagee whose mortgage he has redeemed has against the mortgagor or any other mortgagee. That is provided in the first paragraph of Section 92, and the third paragraph provides this:

A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.

4. By virtue of Section 59A of the Act the word 'mortgagor' includes 'persons deriving title from a mortgagor,' so that if the plaintiff comes within the terms of Section 92 he would have the same rights as Government not only against defendant No. 1 who borrowed the money from Government but also against defendants Nos. 2 and 3 who derived their rights from defendant No. 1.

5. There are however obvious difficulties in the way of the application of Section 92 to this case. In the first place there was in fact no mortgage to Government. There was a statutory charge in favour of Government in respect of survey No. 5/2 and also the three fields given as collateral security. But it was not a mortgage. Assuming however that that difficulty could be got over; it has been held, by a Full Bench of the Allahabad High Court in Hira Singh v. Jai Singh [1937] All. 880, that where part of the consideration for sale of land is retained by the purchaser for the discharge of incumbrances on the land that money is to be regarded as the money, of the vendor, and therefore the purchaser is not entitled to subrogation under the first paragraph of Section 92. He may or may not come under the third paragraph, but in the present case it is clear that the plaintiff cannot come under the third paragraph because there is no registered agreement giving him the right of subrogation. The sarnie view of the construction of Section 92 has been taken by a full bench of the Madras High Court in Lakshmi Amma v. Sankara Narayana Menon (1935) I.L.R. 59 Mad. 359, F.B.

6. In view of these authorities the learned counsel for the appellant has conceded that he cannot rely on the doctrine of, subrogation. He does not now claim that his client has any charge over the lands in suit and argues merely that he is entitled to a personal decree against the defendants by reason of the equitable principle enunciated in Section 69 of the Indian Contract Act. According to that section 'a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.' But the same reasoning which rules out Section 92 of the Transfer of Property Act appears to render Section 69 of the Indian Contract Act also inapplicable. If the repayment of the tagai loan to Government is to be regarded as the act of the vendor Ramappa, and not the act of the plaintiff, the purchaser, the plaintiff, obviously does not come within the terms of Section 69, Moreover, even if it were possible to say that there was a payment by the plaintiff within the meaning of Section 69, it was a payment which he was bound to make under the terms of his agreement with Ramappa, and it would not therefore be open to him to say that it, was a payment which some other person was bound to make.

7. Mr. Coyajee relied on Dakshina Mohun Roy Chowdhry v. Saroda Mohun Roy Chowdhry , where Lord Macnaghten said in the course of his judgment (p. 163):--

. . . it seems to their Lordships to be common justice that when a proprietor in good faith pending litigation makes the necessary payments for the preserva-tion of the estate in dispute, and the estate is afterwards adjudged to his opponent, he should be recouped what he has so paid by the person who ultimately benefits by the payment,

8. Section 69 of the Indian Contract Act was not mentioned in the judgment, but the principle relied upon seems to be the same, and that principle does not apply if the legal effect of the transaction between the plaintiff and Ramappa was that Ramappa paid the money and not the plaintiff. Incidentally I may say that the plaintiff's good faith is by no means clear, since all the payments) which he made to Government were made after the attachment of the survey No. 5/2 and the final payment was made after defendant No. 2 had actually got possession of the land.

9. We were also referred to Muhammad Siddiq Khan v. Muhammad Nasir-ul-lah Khan (1893) L.R. 26 IndAp 45. In that case part of the consideration for a sale of land was retained by the vendees for the purpose of partially discharging the encumbrances on the land, the vendor being bound to supply the rest of the money necessary for the purpose. Their Lordships held that the money retained by the vendees was not to be regarded as a deposit of the vendor's money on which the vendor was entitled to get interest. They did not say that the money was not the vendor's money, and I think that there is nothing in this case inconsistent with the view taken by the Full Benches of the Allahabad and Madras High Courts. The Privy Council case therefore appears to be of no material assistance to the plaintiff.

10. It may be a case of some hardship as the plaintiff has not get the full benefit of his repayment of the tagai loan to Government, whereas the other defendants have benefited by it in proportion to the land in which they are interested. But in our opinion the lower Courts were clearly right in holding that the plaintiff's suit was misconceived and that his only legal remedy was to sue defendant No. 1, his vendor, for damages. The appeal therefore must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //